Innovating the 2L and 3L years

How is listening taught in law school—if it is taught at all? Some wonderful work is being done, especially in the clinics. But even the strongest and most effective approach to listening typically found in legal education today seems to be based in individual courses. It seems possible that a given law student could graduate from a typical U.S. law school without working on listening skills at all.

That’s not the case in an innovative program at the University of New Hampshire School of Law that re-envisions the 2L and 3L years. A new report by Educating Tomorrow’s Lawyers, an initiative of the Institute for the Advancement of the American Legal System, describes the Daniel Webster Scholar Honors Program. Twenty-four students are selected at the end of their first year of law school to participate over the next two years. These students attend a careful sequence of subject-matter and skills classes. They receive frequent feedback (formative assessment) and must assess their own progress through a variety of reflection assignments. Upon successful completion of the program, students are admitted to the New Hampshire Bar without taking the regular bar exam, a fact touted in the New York Times’ recent article on bar-exam critics.

Listening plays an explicit role at the beginning, middle, and end of the Webster program.

The beginning: Getting admitted to the program

First, students are actually selected for the Webster program in part based on their communication skills. The report notes that during the program’s first year in 2005, student selection was based in large part on prior academic achievement. Now, selection is based on personal interviews with the selection committee and the committee’s assessment of a broader set of criteria. The criteria are grouped into four main categories: professional relationships, professional development, personal responsibility, and academic competence. A number of criteria in the professional relationships category relate to listening:

  • Have integrity and engage in honest discourse
  • Treat themselves and others with respect
  • Work well with others, acknowledging their own and others’ strengths and weaknesses
  • Show empathy and kindness to others
  • Listen attentively—know when to listen and when to contribute
  • Have humility—admit to mistakes and make apologies

And several criteria related to professional responsibility relate to listening as well:

  • Seek—and learn from—feedback
  • Are open to new ideas, seeing things from others’ perspectives, and sharing their views

The middle: Sequence of classes

Students in the Webster program proceed through a preset sequence of classes. Working with simulated clients appears to be required every semester. For example the first semester of the 2L year requires pretrial advocacy. The report provides benchmarks for that course. Some benchmarks address listening in the classroom: whether the student “actively and respectfully listens to peers and professor” and makes relevant comments that reflect, inter alia, insight about other students’ previous comments. Other benchmarks address performance on the skills such as taking a deposition (whether the student asks clear questions and uses effective body language and eye contact) and giving an oral argument (whether the student gives responsive answers to the judge’s questions and again uses effective body language and eye contact).

The end: Capstone class and standardized client interview

The Educating Tomorrow’s Lawyers Report is so enthusiastic about this program because graduating students in the program outperform new lawyers at least as measured on their client interviewing skills. The capstone class involves a “standardized client interview” in which students are assessed by the trained actor who plays the client. The assessment has two parts: (1) interpersonal and professional interaction such as whether the student listened to the client; and (2) skill at asking questions to glean specific facts necessary for the client representation. Appendix B to the Report contains the assessment form filled out by the trained actors/standardized client. It contains a number of questions regarding the lawyer’s demeanor and ability to gain trust and glean the correct information.

Question 2 on that assessment hits listening about as hard as you can hit it, with 1 representing “strongly disagree” and 5 representing “strongly agree”:

I felt the lawyer listened to me.

1            2           3           4           5

The students who completed this program, regardless of their LSAT scores and other entering credentials, outperformed lawyers with 1-2 years of experience who also completed a standardized client interview. They received higher scores (statistically significantly higher) on the criteria of their professional communication skills such as listening and building trust. They received significantly higher scores on their ability to glean the relevant information from the client.

The Educating Tomorrow’s Lawyers Report proclaims that these students are more ready to “hit the ground running” as a result of the program. The Report does, however, acknowledge obstacles to implementing such a program on a broader scale outside the context of the close-knit New Hampshire legal community. The Report suggests that the Webster program’s innovations could be unbundled and implemented in a more modular fashion, on a smaller scale. The key elements to preserve would be “the combination of formative and reflective assessment in a practice-based context and a focus on collaboration between the academy and the profession.”

A previous post about another initiative of Educating Tomorrow’s Lawyers can be found here.

Where competence and character come together

The nice thing about Twitter is you can learn from events you can’t actually attend. Today Stephen M.R. Covey (son of the 7 Habits guy) spoke at the “DEXIO” conference in Canada: Developing Excellence in Others. This slide from Covey’s talk caught my eye:

(HT to @ITCatherine for the slide.)

Covey’s list of 13 leadership behaviors wasn’t specifically aimed at lawyers as leaders, but it might as well have been. The behaviors were organized into three major categories — competence, character, and the convergence of the two.

Competence was an interesting category and one that will feel good to many lawyers because we are generally very smart and good at the tasks of lawyering. But being competent isn’t enough to succeed in a collaborative work environment. UC-Hastings Dean Frank Wu wrote about this in his Huffington Post column on Why Law Firms Fail. Likewise, while character is essential, it’s also not enough by itself to make a good lawyer.

The convergence category was the payoff of this slide. While competence and character are obviously indispensable to the work of a legal professional, each on its own is not enough. On the slide, Covey lists three behaviors where competence and character come together:

  • listening first
  • keeping commitments
  • extending trust

Obviously I was excited to see listening on that list. Good listeners are highly competent, and good listeners also show great character. Or we could state the opposite: Poor listening can lead to incompetence, such as by not being able to get results because crucial facts or motives were not perceived. (Ouch.) And poor listening may be perceived as disrespectful and therefore a sign of poor character. (Double ouch.)

But the deeper point here is about what it means to be a “high-trust leader” (the title of Covey’s slide) and to develop excellence in others (the theme of the conference). For lawyers responsible for developing excellence in others, what behaviors do they use to do so? Some may take a bit of a muscular attitude toward developing excellence: “I’m going to model it and you can watch and learn.”

Or a senior lawyer may effectively “teach” excellent swimming by throwing juniors into the pool. This approach was apparent in a training video from Hogan Lovells shown at the 2016 American Association of Law Schools’ Annual meeting (video at minutes 8:30-16:10) :

In that video, a senior lawyer was faced with a potential conflict over work allocation among two juniors on his team. To get excellence from this team, he was going to have to go beyond being a good lawyer and nice guy. His response to the conflict? Something along the lines of: “They’re adults; they’re going to have to work this out. I don’t have time for it.” So this guy was clearly not what Hogan Lovells was offering up as a great example of leadership. Maybe he could have used a little more listening, a little more trust-building. He seemed like a good lawyer — very competent and unassailable character. But something was lacking in the way he approached the situation. Maybe it was those behaviors at the intersection of competence and character.

Writing this post made me want to read Deborah Rhode’s book Lawyers as Leaders. For those who have, what would Rhode say about the behavioral categories in Covey’s slide above? How would she approach the hands-off lawyer attempting to lead a team in the Hogan Lovells video?

Thanks to Jennifer Kahnweiler for correcting an earlier version that misidentified Stephen M.R. Covey as his father, Stephen Covey.

Defining success for new lawyers

The state bar where I am licensed just blast e-mailed a survey for the Educating Tomorrow’s Lawyers project of the Institute for the Advancement of the American Legal System. According to the survey e-mail, this project has three goals:

  • finding out “what law graduates need to launch successful careers in the legal profession”
  • creating “models of legal education to better fulfill those needs”
  • identifying “tools legal employers can use to make better hiring decisions”

The point of the survey is to clarify what “skills, characteristics, and competencies” are necessary for new lawyers in their first year of practice. The survey addresses a myriad of potential competencies from legal research to finance and accounting to personal resilience. Survey participants are asked to rank each item on a four-part scale from immediately necessary for new lawyers to not relevant (as in not relevant ever, in the survey participant’s area of practice).

The list of potential competencies is fascinating; just taking the survey should be a thought-provoking experience. Legal employers who have set objectives for new attorneys’ professional development — or who want to set such objectives— should be following this survey very closely. Lawyers who want to reflect on their own individual strengths, weaknesses, and possibilities should find it informative as well.

The survey questions were arranged by category, and several questions hit on listening either directly or indirectly. In the communications category, the survey asked about the skill of listening “attentively and respectfully.” In the category for emotional intelligence, the survey asked about reading and understanding others’ subtle cues as well as exhibiting tact and diplomacy.

If you have the opportunity to fill out this important survey, I urge you to do so. Educating Tomorrow’s Lawyers is making a major constructive effort to address the challenges “we” — defined broadly by me to include law students, law schools, lawyers, legal employers, and the clients eventually served by all of the above — together are facing.

Here is more information about the Foundations for Practice initiative.